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Friday, March 6, 2009

> People's hope on Judiciary

P. Ramakrishnan, Aliran

Confronted by crisis in Perak, the people had reason to believe that the judiciary would be our last hope for justice to prevail. That hope is apparently misplaced. What a disappointment that proved to be!

It is difficult to believe or accept the decision of the Judicial Commissioner, Ridwan Ibrahim. To say the least, Malaysians are shocked into disbelief by his verdict. Technicalities were used to prevent a fair trial and counter arguments to help the judge to arrive at a sound decision.

In this instance we are reminded of Aeschylus who said, “Wrong must not win by technicalities.” But that was what happened in the Ipoh High Court on 3 March 2009. It is a matter of grave disappointment to all of us.

To begin with, his decision to hear the case in chambers — not withstanding his discretionary powers — came as a complete surprise to the nation. Knowing that the entire country is very concerned with what is happening in Perak, the appropriate thing would have been to hear the case in open court as requested by senior lawyer, Tommy Thomas, representing the Speaker of the Perak Assembly. This fair request was denied.

What is at issue in this instance concerns every Malaysian and they have a right to know what persuasive arguments have been presented to support this case that has been brought to the Ipoh High Court by Zambry and others. We have a right to know what prevailed upon the Judicial Commissioner for his decision. Now, we will never know what transpired in the chambers.

Secondly, the decision to deny representation by lawyers of the Speaker’s choice on mere technical grounds is perplexing. The argument that the five lawyers chosen by the Speaker to represent them have no locus standi is difficult to accept as justifiable grounds to deny the Speaker his defence. That goes against natural justice.

To insist that the Speaker should be represented by the office of the state legal advisor is indeed baffling. It is incredulous that the court failed to see the obvious inherent conflict of interest. The legal advisor is currently representing ‘the other MB’ Zambry Abd Kadir in a case brought to court by the legitimate MB Nizar Jamaluddin. How could the legal advisor now seriously and consciously defend the position of the Speaker? Is it even possible? This is stretching absurdity to the extreme limits!

If it is true as is claimed that the “officer” of the government – in this case the Speaker - must be represented by the legal advisor, does it mean that the court recognises that the Speaker and his Executive Council is the legitimate government in Perak?

Or put another way, since the legal advisor is representing “the other MB” on behalf of the government in the High Court case in Kuala Lumpur, does it not imply that Zambry and his Council members are accepted and recognised as the “legitimate” representatives of the Perak government?

That being the case, how can Zambry and the others then be represented by private lawyers and not by the legal advisor? Shouldn’t the same argument prevail that this so-called government must be represented by the state legal advisor? Why this double standard?

Thirdly, we are appalled that the request by Tommy Thomas to hold a watching brief with speaking rights was denied by the court, which ruled that he could hold the watching brief but could not submit or participate in its proceedings. This decision is clearly absurd and incredible!

How could the court in the name of justice choose to pass judgment without hearing the other side? How could the court arrive at a just decision without the benefit of the counter argument? How could the court not allow representation before passing judgment? “Fairness is what justice really is,” said Potter Stewart. Where is that fairness in this case?

Fourthly, the court has issued an indefinite restraining order — to stop the Speaker from summoning the sitting of the State Assembly — after a one-sided 90 minutes of submissions and 10 minutes of deliberation. Does this decision take into consideration the consequence of that ruling? It has been stated by legal experts that if the Assembly does not sit at least once within a span of six months then the Assembly is automatically dissolved.

The much anticipated reformation in the judiciary is illusory. It will not take place with the present set up of the judiciary. It would take a complete overhaul of the judiciary with new appointments of competent people of absolute integrity.

The crisis in Perak cannot be solved by the judiciary. The proceedings in the Ipoh High Court brought to mind what Thomas Fuller rightly observed, “Rigid justice is the greatest injustice.”

Ultimately, it is the will of the people of Perak that must solve their dilemma — not someone else or some other institution. Aliran hopes and pleads that common sense will prevail in the larger interest of the nation.

As we see it the only solution lies in the dissolution of the Perak State Assembly and holding fresh elections. Let the sovereignty of the people decide once and for all who should form the government in Perak.

Are we Malaysia or are we Zimbabwe ?

This seemingly ridiculous question has to be asked because of what is happening in Perak. The BN has failed to display the political maturity as the ruling coalition of a nation that has experienced 52 years of

Parliamentary Democracy.

What is taking place in Perak brings us disgrace and disrepute. Malaysia comes across as no better than Zimbabwe or even Myanmar where the rule of law has been cast aside. It is no better than these despotic states that do not recognise the principles of democracy or the sanctity of the due process of the law.

We have, unfortunately, descended to this gutter level because of the corrupting influence of power and position. This greed for power has totally corrupted politics in Malaysia that we no longer pay homage to truth and justice; we no longer honour the will of the people.

In the maneuvering and manipulation that is taking place in Perak to topple a legitimate government by foul means, the BN politicians seem to have forgotten that sovereignty remains at all times with the people and they do not forfeit it even though the might of the ruling party has been brought into play to sabotage the democratic will of the people - The Malaysian Insider.